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Robert v. Citigroup

July 20, 2012


The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge



On March 23, 2012, the defendants served the plaintiffs with: (1) interrogatories on behalf of Citigroup, Citibank, Citimortgage and Citifinancial (collectively "Citi"), containing 12 questions; (2) interrogatories on behalf of Mortgage Electronic Registration Systems and MERSCORP (collectively "MERS"), containing 11 questions; and (3) document demands on behalf of all defendants, containing 28 requests. On May 9, 2012, the defendants requested a conference pursuant to Local Civil Rule 37.2 of this court, asserting that: (a) the plaintiffs "provided no responses [to Citi's interrogatories] other than to reproduce portions of the Second Amended Complaint; (b) the plaintiffs' responses to MERS's interrogatories "amounted to little more than recitations to various documents without actually responding to the interrogatories themselves"; and (c) the plaintiffs failed to produce any documents in response to the defendants' document demands. On May 22, 2012, the Court held a telephonic conference with the parties to address the issues raised by the defendants. As a result of the conference, on May 23, 2012, the Court ordered the plaintiffs to supplement their responses to the defendants' discovery demands on or before May 29, 2012, and directed the defendants to file their motion to compel, thereafter, if necessary. On June 1, 2012, the Court granted the plaintiffs' motion for leave to file their third-amended complaint. On June 11, 2012, the defendants answered, counterclaimed and served the plaintiffs with supplemental interrogatories, consisting of 11 questions and document demands, consisting of 16 requests. On June 25, 2012, the Court directed the plaintiffs to disclose to the defendants the December 2011 "Settlement Agreement and Release" between the plaintiffs and Travco Insurance Company, because it is relevant to the defendants' counterclaim.

Before the Court is the defendants' motion, pursuant to Rule 37 of the Federal Rules of Civil Procedure, for an order "precluding the Plaintiffs from offering any evidence at trial," or "compelling the Plaintiffs to produce all outstanding discovery in compliance with the Court's Order of May 23, 2012 and extending the time to complete discovery and to file and serve dispositive motions an extra 30 days each," as well as awarding costs and attorney's fees. The plaintiffs oppose the motion.

Defendants' Contentions

The defendants contend that the plaintiffs failed to comply with their discovery obligations and the May 23, 2012 order. According to the defendants, the plaintiffs failed to produce any information "regarding the homeowners insurance policy required by the Mortgage, several checks Plaintiffs received from the carrier regarding claims filed against the policy, and authorizations from Plaintiffs to obtain the related claims file." Additionally, the defendants assert they did not receive clarification from the plaintiffs regarding "which statute(s) Plaintiffs alleged Defendants violated, noting that the citation made by Plaintiffs did not exist," and the plaintiffs did not identify documents that support their contentions that the defendants "failed to 'join' the note and mortgage at origination, that their particular mortgage was part of a securitized debt instrument, and that their mortgage entered a pool of mortgages as alleged in their Second Amended Complaint." The defendants contend that, with respect to several interrogatories, the plaintiffs responded with "a plethora of assertions as to the general practices of MERS and the mortgage industry."

The defendants maintain that the plaintiffs also failed to comply with the Court's May 23, 2012 order because their belated supplemental discovery responses "either repeat what Plaintiffs already served upon Defendants or do not respond to the requests made for documents and information raised in Defendants' First Interrogatories, the May 9, 2012 correspondence to the Court, or the Supplemental Interrogatories served on June 11, 2012." Moreover, although the plaintiffs produced the December 2011 Settlement Agreement and Release, as directed by the June 25, 2012 order, they failed to produce information requested in the first set of interrogatories about the payments made to the plaintiffs by the Travco Insurance Company in connection with nine claims filed by the plaintiffs between April 2007 and April 2011, as identified in the December 2011 Settlement Agreement and Release. The defendants contend that, inasmuch as they are loss payees "on the subject policy and the monies that Plaintiffs recovered from the homeowners insurance policy were not used to repair the home as required by the Mortgage," the plaintiffs should be compelled to disclose the information requested, since it is relevant. The defendants also contend that the plaintiffs' supplemental responses did not identify the statute they allege MERS violated; instead the plaintiffs reproduced parts of their allegations from the complaint, "without a shred of specific information as to how alleged violations affected Plaintiffs directly." Similarly, the plaintiffs failed to provide any specific responses to Citi's Interrogatory Nos. 7, 9, 11 and 12, and failed to respond to the supplemental interrogatories, related to the new claims in the third-amended complaint, "which call for any and all evidence to support the six new counts of claims raised in this pleading." According to the defendants, the plaintiffs' "out of scope" objections to supplemental interrogatories, as well as their "asked and answered" responses, are misplaced because the supplemental interrogatories are relevant to the plaintiffs' claim that the defendants trespassed and burglarized their home and, since the supplemental interrogatories were served after the third-amended complaint was filed and relate to the new claims, they could not have been "asked and answered" because "[i]t is impossible for Defendants to have requested additional evidence regarding claims that had not yet been pleaded by Plaintiffs."

Plaintiffs' Contentions

The plaintiffs contend that, on "April 13, 2012, in an effort to provide the specificity and additional supporting documentation that was requested in the Defendants' First Interrogatories and Discovery Demands, [they] served the Third Amended Complaint on Defendants with 26 additional documents, chosen specifically by first time pro se Plaintiffs to survive a motion to dismiss." According to the plaintiffs, subsequently, they provided their answers to the first interrogatories and discovery demands. The plaintiffs maintain that the defendants' supplemental interrogatories requested "evidence that was either provided in the Third Amended Complaint or previously objected to as being out of scope." The plaintiffs contend that they responded to all outstanding discovery demands, and that: (a) seven requests "are out of scope and have to do with activities that assume Defendants have standing with respect to a Mortgage"; (b) eight requests "are out of scope and have to do with where the Plaintiffs have lived or their personal and business finances since their home was destroyed"; (c) twelve of the requests "are out of scope and have to do with a private home owners insurance policy that plaintiffs had with Travco and are subject to a non-disclosure agreement"; (d) two requests "are out of scope and have to do with private work product on the case"; (e) ten requests "are general in nature" and have been produced; (f) "[t]he remaining requests have to do with the specifics of the Third Amended Complaint" and "have been asked and answered more than once."


Legal Standard

"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). "[T]he scope of discovery under Fed. R. Civ. P. 26(b) is very broad, 'encompass[ing] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" Maresco v. Evans Chemetics, 964 F.2d 106, 114 (2d Cir. 1992) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389 (1978)).

"If a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue . . . just orders," including "prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence" or "dismissing the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b)(2)(A). "Instead of or in addition to the orders [pursuant to Fed. R. Civ. P. 37(b)(2)(A)], the court must order the disobedient party . . . to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

Upon any motion or application involving discovery or disclosure requests or responses under Fed. R. Civ. P. 37, the moving party shall specify and quote or set forth verbatim in the motion papers each discovery request and response to which the motion or application is addressed. The motion or application shall also set forth the ...

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